The United States Constitution does not guarantee a right to clean drinking water, or to accurate information from public officials during a public health crisis. That is the holding of the full US Court of Appeals for the Fifth Circuit, in a divided decision issued on 4 September.

The ruling affirms the dismissal of a lawsuit brought by residents of Jackson, Mississippi, over lead contamination in the city’s water supply.

The case

The 2022 lawsuit arose from testing carried out by the Mississippi State Health Department between 2010 and 2013, which showed rising lead levels in Jackson’s water. Residents alleged that the city knowingly exposed them to contaminated water and concealed what it knew. Jackson has denied the allegations.

The claims were framed as violations of the Due Process Clause: a right to bodily integrity, and a right to truthful information from officials.

A divided Fifth Circuit panel revived the bodily autonomy claim in 2025. That ruling was vacated when the full court agreed to rehear the case en banc, and the en banc court has now gone the other way.

What the court said

The majority opinion was written by Judge Kurt Engelhardt, appointed by Donald Trump.

The Due Process Clause protects some rights not written in the Constitution, but only those so deeply rooted in the nation’s history and tradition that they are treated as implicitly protected. Engelhardt found no such historical basis here. The deprivation of clean water was grievous, he wrote, but it did not infringe any deeply rooted constitutional right, and there was no history or tradition of a right to truthful information from officials during a public health crisis.

On bodily integrity, he distinguished the established cases — sexual assault by a police officer, forced medication of prisoners — from mismanagement of a water system, which he called wholly different. And while the Supreme Court has recognised some due process rights connected to informed consent, he found those did not extend to accurate information from public officials.

The line the decision turns on is short: the Constitution does not provide redress for every governmental wrongdoing.

What it does not say

Coverage of this ruling has largely reported it as a decision that Americans have no right to clean water. That is not quite what happened, and the distinction matters.

The court did not rule that governments may supply contaminated water, or that nobody may be held responsible. It ruled on a narrow question: whether these particular claims can be brought as constitutional claims under the Due Process Clause.

Engelhardt was explicit that other routes remain. Residents can bring tort claims under state law. They can elect officials who will manage the water system better. They can petition their representatives. The Safe Drinking Water Act and its regulatory machinery are untouched by this decision.

Whether those alternatives are adequate is exactly what the two sides disagree about.

The argument on each side

The case for the majority’s approach is one of judicial restraint. Courts that recognise new constitutional rights are removing questions from ordinary politics and placing them beyond legislative revision. The history-and-tradition test exists precisely to constrain judges from writing their own policy preferences into the Constitution, and applying it consistently means sometimes reaching results that feel wrong. On this view, the remedy for bad water is a statute, a regulator and an election.

The case against is that the alternatives are weakest exactly where the harm is worst. Tort claims against a municipality face immunity defences and require resources that residents of a poor city may not have. Electing better officials does not help people already exposed. And a test that asks what was deeply rooted in the eighteenth or nineteenth century will systematically fail to protect against harms that only became possible with modern municipal infrastructure.

Jackson is a majority-Black city with a long history of underinvestment in its water system, and that context is part of why the case has drawn the attention it has. We have set out separately today how the history-and-tradition test works and why so much now turns on it.

Sources

• Bloomberg Law, Jackson residents lose bid to revive water contamination claims, 4 September 2026
• Bloomberg, Constitution doesn’t include right to clean water, court rules, 4 September 2026
• Spokesman-Review and Jefferson City News-Tribune, carrying the Bloomberg report, 4–6 September 2026
• WTHR, citing USA Today, on the origins of the lawsuit and the 2010–2013 Mississippi State Health Department testing
• Majority opinion of Judge Kurt Engelhardt, en banc US Court of Appeals for the Fifth Circuit